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CONSIDERATIONS 


ON THE 


CONSTITUTIONALITY 

OF 



By JOHN HENDERSON. 


!» 



NEW ORLEANS: 

Printed at the office of the “DAILY DELTA,” 112 Povdras street . 








CONSIDERATIONS 


ON THE 

CONSTITUTIONALITY 

OF 

PRESIDENT’S PROCLAMATIONS. 


By JOHN HENDERSON. 


The history of nations teaches one universal 
truth,—namely, that administrative power in 
Government has an eternal tendency to augmen¬ 
tation. 

The captivating bauble is ever being fondled 
and nursed into extension, and under pleas of 
necessity, the public good, or the bolder war¬ 
rant of undisguised usurpation, its dimensions 
are enlarged, till, like the frog in the fable, 
its end is explosion. Deplore it as we may, 
the rule has no exception. Vigilance and in¬ 
tegrity may do much to postpone the catas¬ 
trophe, but the cankerous evil is never cured. 

One of the most popular cheats by which 
power augments its pretensions, is by the plau¬ 
sible disguises of precedent. One bad prece¬ 
dent readily begets others, and all serve as 
standards for imitation. Whether originating 
in wily craft, blind zeal, or honest ignorance, 
they are equally potent for mischief, and the 
party who opposed them when initiated, too 
readily follow them as examples. 

I do much regret that President Pierce has 
made his present demonstration in this line of 
bad precedents. For, though he has avoided 
the libellous vulgarities indulged in by the late 
Administration on a like occasion, and has per¬ 
petrated no such discreditable blunder as to 
affect to commission the military with the 
functions of the tip staff by virtue of a procla¬ 
mation ; and though his language is decently 
discreet, and his object, as expressed, seems to 
have been considerately studied-—still it is sub¬ 


mitted his views, policy and opinions, so pub¬ 
lished, are not timely and well advised, and the 
power asserted more than questionable. 

I propose a brief inquiry into the authority 
for such a proclamation, and of its objects, and 
the policy and opinions therein expressed. 

General Pierce says that it is “ in virtue of 
the authority vested by the constitution in the 
President of the United States” that he issues 
this proclamation. Now, we have many laws 
of Congress which give the power or make 
it the duty of the President to issue proclama¬ 
tions in the particular cases which these laws 
have specified. Such is his duty by law in cases 
of domestic insurrections. But our neutrality 
laws have enjoined no such duty and given no 
-uch power. And to all who have read the con¬ 
stitution of the United States it is sufficient to 
say, it contains no express authority to the 
President to issue proclamations of this or any 
other description; and I maintain the authority 
is not fairly implied. What is a proclamation— 
an official proclamation ? Is it not to declare 
some matter of state, not previously denoted, 
to the public ? And must it not carry with it 
some inherent authority, or declare the estab¬ 
lishment of some rule or authority not previ¬ 
ously established ? If less than this, it is a 
mere brutumfulmen, or simple notice, not of 
what the President will do, or will have done, 
as matter of official discretion, but that he ex¬ 
pects that himself and his subordinates will do 
their duty as the laws enjoin. If this be all, it 




4 


is not worth the ammunition so pompously ex¬ 
pended; and if less or more than this, it is with¬ 
out authority. Now, where laws direct the 
President to make proclamation, it is for some 
purpose denoted by the law, or where the bind¬ 
ing force of laws as made dependent upon the 
issuance of an official proclamation, or suspend¬ 
ed laws are reanimated by proclamation, we 
perceive a practical use to such formal monition. 
But no such object or consequence is connected 
with the law of 1818. 

“ These proclamations,” says Justice Black- 
stone, have then a binding force—when (as Sir 
Edward Coke observes) they are grounded up¬ 
on and enforce the laws of the realm ; for 
though the making of the laws is entirely the 
work of a distinct part, the legislative branch 
of the Sovereign Power, yet the manner, time 
and circumstances of putting those laws in 
execution, mu4 frequently be left to the dis¬ 
cretion of the Executive magistrate, and there¬ 
fore his constitutions or edicts concerning these 
points, which we call proclamations, are bind¬ 
ing upon the subject,” &c. 

Now, who will pretend President Pierce’s pro- 
clamatiou is an “edict” of this description? 
But further, says the same author : 

“ From the same original, of the King’s being 
the fountain of justice, we also ueduce the pre¬ 
rogative of issuing proclamations, which i:i 
vested in the King alone.” 

Now, the Supreme Court of the Unittd States 
has decided that the Government of the United 
States has no prerogative. How, then, has our 
President, independent of legislative grant, 
become invested with this Kingly prerogative ? 

When the first of these royal manifestoes was 
issued independent of law, by President Wash¬ 
ington, in 1793, it was widely and violently de¬ 
nounced as a usurpation, by the whole demo¬ 
cratic party. It devolved upon that great man— 
the great Ajax of executive power—Alexander 
Hamilton, to eviscerate from tht- Con-titution a 
vindication of this act. The principal points 
of bis argumeut were to this effect: A procla¬ 
mation was “ a usual and proper measure ” on 
like occasions ; and, to i.-sue a proclamation was 
an executive act. And, as the Constitution of 
the United States vested the “ Executive pow¬ 
er” in the President of the United States, ergo , 
it was by constitutional authority the President 
issued this proclamation of neutrality. 

Mr. Madison, a much abler expositor of the 
Constitution, in assailing this flimsy sophism, 
showed most conclusively that if the powers of 
the President were to be ascertained, by show¬ 
ing what were executive powers in the abstract, 
as known or defined in governments elsewhere, 


there was no difficulty in establishing for the 
President most of the powers of the English 
Sovereign. The democratic intelligence of that 
day was fully satisfied that President Washing¬ 
ton’s proclamation was without constitutional 
warrant. Yet it must be acknowledged that 
democrats have not since hesitated to follow his 
example. Under these circumstances, it may 
be admitted the President’s transgression in 
this case is comparatively venial. Yet, who 
shall say it were not better it had the clear 
sanction of the Constitution? 

It is presumed as probable, however, that 
President Pierce refers for his authority to that 
fascile and abounding source of Executive pow¬ 
er, that the President “ shall take care that the 
laws be faithfully executed.” All remember 
how Amos Kendall pressed the omnipotence of 
this source of Executive power. The curt re¬ 
ply, and pointed exposition, of this text by the 
Supreme Court of the United States, may be 
seen in I2th vol.of Peter’s Reports, pp. 612-613. 

Time is not allowed me for the ample expo¬ 
sition of this clause of the constitution, of which 
it is susceptible. But a brief analysis will show 
it gives no warrant for this proclamation. 

N«>w, in the first place, this proclamation is 
essentially preventive, and aims, by its counsel 
and monition, to dissuade the citizen from com¬ 
mitting a breach of the law, which is supposed 
to be meditated. Such counsel may be very 
good in its way, whether coming from the 
President or from the private friendship of pri¬ 
vate citizens; and such advice may be as pro¬ 
perly given by one as the other. But the best 
wishes of the President to prevent a breach of 
the laws, cannot, by any logic, connect itself 
with his duty to take care that the laws be faith¬ 
fully executed. Laws not broken cannot be 
executed by observance merely. All know 
that, in a legal sense, the execution of the 
law follows judgment. More liberally con¬ 
strued, it is the enforcement of the penalty of 
the law. after its infraction. And in this sense, 
all the duty of the Pre-ident on this point is in¬ 
cluded. As supervisor of all ministerial offi¬ 
cers, subject to his control, if they fail in duty 
and violate the law, they incur the penalty of 
removal from ffice, and such other penalties as 
the law has prescribed to be adjudged by the 
courts of justice. 

But the President has no supervising power 
over the judiciary. He has no duty or respon¬ 
sibility for the manner in which the judges per¬ 
form their duties. But when they have pro¬ 
nounced judgment it is then the duty of the Presi¬ 
dent to take care that the laws be faithfully ex- < 











/ 


ecuted, as the court has adjudged. And for this 
responsible duty he is armed with all the mili¬ 
tary power of the government. If, therefore, 
we have examined the question rightly, the au¬ 
thority for this proclamation is not found in the 
constitution,—and, being without law, is un¬ 
warranted. 

Next, as to the matter of this proclamation, 
and what it threatens to perform. 

The President recites that information “has 
been received that sundry persons, citizens of 
the United States, and others residing therein, 
are engaged in organizing and fitting out a mil¬ 
itary expedition for the invasion of the Island 
of Cuba.” 

Where this expedition is being organized and 
fitted out, and from whence it is intended to 
move for the invasion of Cuba, is not indicated. 
And without these two important facts are fixed, 
and without itsbeiog charged and imputed that 
the expedition is being organized aDd fitted out, 
within the United States, and to be carried on 
therefrom, the-President has made no case, 
which, if consummated, would violate either 
our treaty with Spain, or the neutrality act of 
1818. That a citizen of the United States may, 
within the United States, use his means and 
moi ey to promote an expedition to be organ¬ 
ized out of the United States, and to be carried 
on from without the United States against Cuba, 
and not involve this Government in any breach 
of its treaty with Spain, or involve the neutrali¬ 
ty of the Government in violation of the act of 
1818, are propositions too plain, and too well 
established by ths decision of our courts, and 
our diplomatic correspondence, to be plausibly 
questioned; and such was the obvious under¬ 
standing oi Congress when they passed the tem¬ 
porary act of 10th March, 1838, to meet the exi¬ 
gency of carrying on a military expedition in 
Canada, as sections two and five of that act 
clearly show. 

But the President, perhaps, would be uu- 1 
derstood that the supposed expedition was so | 
fitting out, and so intended to be carried on, as 
to violate both the treaty and law, as he charges 
it would. I answer then to the fact, that so far 
as I have any information on the subject referred 
to, no intention, of infracting either the law or 
treaty is meditated by any one; and that no act 
violative of either, nor act involving the neu¬ 
trality of the Government of the United States, 
will be perpetrated. 

But why hould there be in any quarter a 
disposition to pervert or misrepresent the truth 
as to the sentiments, feelings and opinions of 
what we suppose to be those of the great mass 


I of the people of Cuba, and of many citizens of 
! the United States who concur with them in 
| these sentiments and opinions ? 

The Cuban believes the tyranny under which 
j he suffers is lawless, insatiate, and cruel in the 
j last degree, and that he is deprived of all parti- 
' cipation in self-government. Who doubts the 
i fact? The fact admitted,the power then which 
controls him is a sheer wicked despotism. May 
the Cuban rightfully conspire and struggle to 
overthrow this despotism, and may he right¬ 
fully invoke assistance to this end? To deny 
this is to repudiate the integrity "of our own 
independence, for we so struggled, and 
sought, and obtained private, secret aid from 
the French people. And it will not do for 
hypocrisy, cant, and falsehood to assail the 
purity of motive and action as to assistance so 
sought and so to be given. 

The mock morality taught from high places 
in censure of such conduct, the agreement 
| among the minions or apologists of arbitrary 
power to call such aid piracy, robbery, and 
plunder, will not change the facts. This quar¬ 
rel, all know, is essentially the cause of the 
Cuban against an unmitigated tyranny; and no 
American citizen was ever justly chargeable 
with the folly or the wrong of claiming a right 
of invasion or of conquest of the island of Cuba. 
The right of revolution is the Cuban’s; the 
right of an American citizen is to aid them 
if he pleases, so' he does not violate the 
laws of his country in doing so. The American 
citizen is not the property of his government. 
It is his right to peril himself in any war or 
popular strife abroad he sees it to hazard. And 
he well knows, if the enterprise is one unpro¬ 
tected by the flag of his country, the peril is his 
own. Shall we, who encourage the people of 
every nation to a renunciation of their natal alle¬ 
giance, question this right ? 

Be it known, therefore, that we—at whom, it 
is supposed, the denunciations of this proclama¬ 
tion are aimed—profess to believe ourselves as 
pious, moral and patriotic as any of our fellow- 
citizens who would lecture or censure us. And 
the more so, that we have never received any 
such lectures or censures that have not been con¬ 
ceived in misapprehension or misrepresentation, 
or otherwise marked by a depravity and corrup¬ 
tion of principles of which we conceive ourselves 
incapable. If the cause of Cuba be right, we 
feel how pointless and exaggerated the efforts to 
brand us with either moral or political wrong, in 
giving it our countenance and support. 

“If,” says Mr. Madison, “there be a principle 
| that ought not to be questioned within the 














6 


United States, it is, that every nation has a 
right to abolish an old government and estab¬ 
lish a new one. This principle is not only re¬ 
corded in every public archive, written in 
every American heart, and sealed with the blood 
of a host of American martyrs ; but is the only 
lawful tenure by which the United States hold 
their existence as a nation.” 

These were the sentiments of young America. 
There is yet enough of the spirit of young 
America extant, to frown at the fogy ism that 
would obliterate the precious record from our 
memories. 

In regard to Cuba, then, grant the rule of in¬ 
ternational law, “that eve y government de facto 
is to be taken prima facie as the government of 
the people’s choice” ; yet the prima facie ev • 
dence may be rebutted. And where is there 
mendacity Dold enough to assert that the power 
which throttles Cuba like a night-mare is not a 
sheer despotism ? 

All law writers admit there may be a nakel 
tyranny that has no right of protection, or 
respect from the laws of nations. Nor can the 
tyrant claim any legal protection even for his 
personal security. Mr. Madison says : 

“It is not denied that there may be cases in 
which a respect to the general principles of 
liberty—the essential right of the people, or the 
overruling sentiments of humanity might require 
a government, whether new or old, to be treated 
as an illegitimate despotism.’*' Now, I challenge 
any one to cite me to a single element in the pow¬ 
er which crushes Cuba, that entitles that power 
to be respected as the legitimate government of 
the people of Cuba. The Cubans then have good 
cause to revolt. But this power, too, in the wan¬ 
tonness of violence, is now being exerted to an 
end, dangerous to the interests of our Southern 
citizens. And these, together, make augmented 
grounds ot our sympathy, and excite many, it is 
presumed, to such lawful and legitimate action 
as may relieve the oppressed Cubans, and insure 
our own domestic security. Now, with these 
motives and purposes candidly avowed, are the 
facts intended to be controverted by this procla¬ 
mation ? or if admitted to be those aimed at, ar¬ 
raigned and censured by the proclamation, then 
it may become a graver inquiry, how far the 
President shall be successful in his efforts by 
proclamation, to traduce these motives and sen¬ 
timents,—or traduce those citizens who avow 
them. 

When it was fashionable at Washington, in 
1825, to sympathize with the oppressed Greeks, 
there were no presidential threats of prosecut¬ 
ing John Q. Adams, Henry Clay, Daniel Web¬ 


ster, Mr. Forsythe, Gen. Lafayette and others, 
for giving Felix Huston, Esq., the most flatter¬ 
ing letters to the great unnamed of Europe, 
commending his gallantry, and the cause he 
was to engage in,—being to aid the Greeks in 
revolt against their Turkish oppressors. And it 
was well known to all of these gentlemen, that 
he was openly to take men and material aid 
from the Port of New York in furtherance of 
his military enterprise. The act of 1818 was 
then in force, and our country was at peace 
with the Turks. And I shall not pretend, but 
the act so meditated, was in violation of that 
law. But I allude to the fact to show that even 
the conservative Intelligencer did not accuse 
these persons as instigating robbery or piracy— 
or of entertaining sentiments and wishes derog¬ 
atory to them as gentlemen, patriots and good 
citizens. And, as giving special eclat to the pre¬ 
parations for that expedition, Mr. Adams, then 
just elected to office, gave to the same Greek 
(filibuster a regular passport under the great 
seal of the State. If such, then, were the honors 
of such an enterprize, and such its advocates 
and promoters, can it be that the aspersions of 
the proclamation against those who are sup¬ 
posed to sympathize in an equally meritorious 
cause, can be well deserved? 

Much might be said of the President’s im¬ 
putations of lawlessly complicating the ques¬ 
tion of peace and war. Having said there was 
no intention entertained by any, so far as 
known or believed by me, of compromising the 
neutrality of the Government of the United 
States, the question of peace or war by the 
United States cannot be involved. It is well 
known there are already a considerable number 
of American citizens engaged in the Russian 
and Turkish service, and the wars waged by 
them. But is it supposed this makes our Gov¬ 
ernment in any way party to those wars, or 
complicate our peaceful relations with those 
Powers ? , 

The threats in the proclamation of a legal pro¬ 
secution is in bad taste, if not impotent of any 
legitimate end. 

Uuder the theory of our constitution, Gov¬ 
ernment prosecutions, so specially distinguish¬ 
ed, have no place. I mean by such, State pro¬ 
secutions—those lawfully instituted and carried 
on by the king, his council and agents in Eng¬ 
land. and wrongfully imitated by Executive 
pretensions here, where no such legal authori*- 
is given. 

Under our constitution, the judiciary is i 
separated and independent of executive 
and action. Its duties are distinctly as* 


\ 










7 


and its legal machinery for the performance of 
these duties are set apart with the distinct in¬ 
tention that its operations shall go on uninflu¬ 
enced by executive control. The manner in 
which all infractions of the public law shall be 
redressed, how the accused shall be arrested, 
tried and condemned to punishment, is, by the 
constitution and laws, all provided for, and these 
duties exclusive'y assigned to the judicial de¬ 
partment. That the courts will perform their 
duty with fidelity, in all cases, is a confidence 
which the theory of our constitution entertains 
without suspicion. In this respect, they are as 
much trusted as the President is. 

If this be so; wherein has the constitution ap¬ 
pointed that it may, nevertheless, specially 
become the President, in fancied matters of 
State, to work himself up to an energetic ac¬ 
tivity to have the courts to do something more 
or something better than they otherwise would 
do if left to the independent performance of 
their duty as entrusted to them by the con¬ 
stitution ? 

The theory of the English constitution ex¬ 
pressly provides for such executive interference. 
The King is the fountain ot justice. Theoreti¬ 
cally, he sits in court as prosecutor, judge and 
advocate. But not presiding in court in fact, it 
is said the judges reflect the image of his ma¬ 
jesty and justice. In the British constitution 
State trials are especially provided for. “The 
power of the Privy Council is to inquire into all 
offences against the government, and to commit 
the offenders to safe custody in order to take 
their trial in some of the courts of law.” What 
Privy Council has our President on whom these 
duties are devolved ? Nor will it do to say the 
President represents the commonwealth in such 
prosecutions. It is the judiciary only which is 
entrusted with this service, and the officious in¬ 
termeddling of the executive is without consti¬ 
tutional warrant. 

I can well understand that the Attorney of 
the United States, to whom the outside direc¬ 
tion and management of any prosecution is 
exclusively committed, may often require the 
attendance of witnesses from a distance, and 
aid from the Treasury to effect that object; but 
these exigencies may arise in any case, and 
should be conducted alike in all. I know, too, 
the President, guided by his personal anxieties 
(not to say prejudices), by use of his official in- 
'’uence, through subordinate agents, and his 
ity in court by the presence of these 
s, and the thus marked manifestation of 
al and wishes, may render a prosecution 
>sful or oppressive, when it might not 


otherwise be so. But all such partial zeal and 
unequal interference, which may so effect the 
unequal administration of justice, is a perver¬ 
sion of justice, and grossly adverse to the genius 
of our Government and the equal rights of the 
citizen. , ' 

Our courts should not be so tampered with. 
If it is right the Judge should be impressed with 
the wishes of the Executive in a given case,— 
or right and proper he should be made to un¬ 
derstand them, there should be some good 
reason for it. If to quicken his zeal in the 
prosecution, it is a corrupt influence. If to 
relax his zeal, it is alike corrupt. There is no 
legitimate way in which the threatened ener¬ 
gies of the President are to have active scope in 
the prosecution meditated ; that must not ren¬ 
der the exercise of his powers gravely question¬ 
able, or that shall not reflect with some stain, 
or unnecessary shade of suspicion, upon the 
ermine of justice. How infinitely better, then, 
such rash threats, as to the manner in which 
justice shall be administered, should have been 
omitted in this proclamation. The penalties of 
tile law carry with them their legitimate terrors 
td the intelligence and good sense of the Amer¬ 
ican citizen. But in what way such threats have 
become a proper function of power, and wbat 
tjteir tendency for good, is not readily per¬ 
ceived. 

The independence, the uninfluenced inde¬ 
pendence of the judiciary, is the chief corner 
stone of the Temple of Liberty, and the surest 
guarantee of the equal rights and freedom of 
the citizen. Its wisdom is forcibly illustrated 
in the Federalist, and seconded and approved 
by Justice Story, in his commentaries. 

Mr. Hamilton says: “That though indivi¬ 
dual oppression may now and then proceed 
from the courts of justice, the general liberty of 
the people can never be endangered from that 
quarter. I mean, so long as the judiciary re¬ 
main truly distinct from both the legislative 
and executive ; for I agree that there is no li¬ 
berty, if the power of judging be not separated 
from the legislative and executive powers.” 

Now, all these threats of the Executive to ob¬ 
trude his zeal and his wishes, and even his pres¬ 
ence, by subordinate agents, and his super¬ 
numerary attorneys, into the courts of justice, 
to effect a conviction, can have no proper, pure 
and good result. And, however modestly or 
truly disclaiming to seek an undue influence 
with the judge, yet such intrusions could not 
leave his infirm humanity as erect and self- 
poised as if his mind was not burdened with 


\ 







8 


the Executive energies and anxieties so mani¬ 
fested and paraded before him. 

Though having but slight participation in 
whatever of movement there is now being made 
for the redemption of Cuba, and the security of 
the South, I am willing to shoulder my share of 
the responsibility. Not wholly unknown to the 
American people, I have some pride of reputa 
tion, and claim to entertain as high a respect 
for law, for trnth, and for such virtues as are 


comprised in the character of a good citizen, as 
those may affect to have who can use official 
station as a license to propagate detraction. 
And before the American people I thus defend 
myself against all disparaging charges and in¬ 
sinuations contained in the President’s procla¬ 
mation, so far as I am concerned. 

JOHN HENDERSON. 

New Orleans, La., June 10,1854. 


9 








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